SERIOUS AND RECURRING MALTREATMENT
Serious maltreatment, as defined at Minnesota Statutes, section 245C.02, subd. 18, and recurring
maltreatment, as defined at Minnesota Statutes, section 245C.02, subd. 16, result in disqualification.
Subd. 18. "Serious maltreatment" means the following:
I.
Sexual Abuse
II.
Maltreatment Resulting in Death
III.
Neglect Resulting in Serious Injury which reasonably requires the "care of a physician*,"
whether or not the care of a physician was sought, or “abuse resulting in a serious injury.*”
"Abuse Resulting in Serious Injury" includes the following:
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IV.
Bruises
Bites
Skin laceration or tissue damage
Fractures
Dislocations
Evidence of internal injuries
Head injuries with loss of consciousness
Extensive second-degree or third-degree burns and other burns for which
complications are present
Extensive second-degree or third-degree frostbite, and others for which
complications are present
Irreversible mobility or avulsion of teeth
Injuries to the eyes
Ingestion of foreign substances and objects that are harmful
Near drowning
Heat exhaustion or sunstroke
Neglect resulting in criminal sexual conduct against a child or vulnerable adult.
* 245C.02, Subd. 18. (b) "Care of a physician" is defined as treatment received or ordered by a
physician, physician assistant, or nurse practitioner, but does not include:
(1) diagnostic testing, assessment, or observation;
(2) the application of, recommendation to use, or prescription solely for a remedy that is available over
the counter without a prescription; or
(3) a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment.
Subd. 16. “Recurring maltreatment” means more than one incident of maltreatment for which there
is a preponderance of evidence that the maltreatment occurred and that the subject was responsible for the
maltreatment.
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SERIOUS AND RECURRING MALTREATMENT
(continued)
"Two-Tiered" Approach For Serious Maltreatment
Under the current law, if maltreatment due to abuse is determined and one of the injuries on the list
has occurred as a result of the abuse, the maltreatment is serious and disqualification is appropriate.
If maltreatment due to neglect is determined, then it is necessary to determine whether there was an
injury that reasonably required the care of a physician, whether or not care was sought. In addition,
neglect (e.g. failure to provide necessary supervision) that results in criminal sexual conduct against a
child or vulnerable adult is serious maltreatment.
In light of these distinctions regarding "serious maltreatment," it is critical that the licensor know
whether the maltreatment determination was based on abuse or neglect. If this is not clear from the
child protection report, the licensor should consult the child protection worker to determine whether the
substantiated maltreatment was abuse or neglect, so the licensor can determine which standard
applies.
Neglect and "Care of a Physician"
•
Diagnostic Testing: Care of a physician is defined as "treatment received or ordered by a
physician, physician’s assistant, or nurse practitioner, but does not include diagnostic testing,
assessment, or observation; the application of, recommendation to use, or prescription solely
for a remedy that is available over the counter without a prescription; or a prescription solely
for a topical antibiotic to treat burns when there is no follow-up appointment." Diagnostic
testing, assessment, and observation are excluded so that a person is not penalized solely for
obtaining a thorough assessment of any possible injuries. For example, if an individual falls
and a physician orders x-rays that reveal no injuries, the x-rays would be for diagnostic or
assessment purposes and would not constitute care of a physician.
•
Care by a Nurse: There may be situations when the care is provided by a nurse rather than directly
by a doctor. In some circumstances, nurses are delegated certain duties under the supervision of a
physician or group of physicians; this would be considered to be “care of a physician”. This
delegation normally happens through a physician's order or a medical facility's "standing orders." If
the care provided is that which typically comes under the authority of a physician, then it will likely be
considered to be “care of a physician”. If you are uncertain, you should ask the nurse whether the
care given is that which s/he has authority to provide as a nurse, or whether it is delegated or
supervised by a physician. You may also contact one of the licensors at the Minnesota Department
of Human Services (DHS), Division of Licensing, for assistance.
•
When a Physician was not consulted: In circumstances when a physician was not consulted, there
may be a question as to whether a physician should have been consulted. This determination will
need to be made at the county level, in assessing whether a person should be disqualified due to
serious maltreatment. How this determination (of whether a physician's care should have been
sought) will be made depends on county policy, please check with your city or county attorney to find
out if s/he wants to be involved in that decision. The licensors at DHS are also available to
provide technical assistance.
Assistance from DHS
Please contact one of the licensors at DHS if you have questions.
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SERIOUS AND RECURRING MALTREATMENT SCENARIOS
I.
Neglect, Not Serious Maltreatment
II.
III.
IV.
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A.
Facts: A family child care provider leaves children unsupervised, during which time one child
bites another. Skin is not broken and no medical care is sought. Maltreatment by neglect is
determined.
B.
Analysis: Because neglect is involved, the question is whether the injury reasonably required
the care of a physician, whether or not care was sought. In this case the bite did not break the
skin, no other unusual circumstances were noted, and the care of a physician was not needed.
This is not serious maltreatment. (This same analysis would apply to situations where one child
is hurt by another child, bruises but nothing more result and maltreatment due to neglect for lack
of supervision is determined.)
Abuse, Serious Maltreatment
A.
Facts: A family child care provider bites a child. The skin is not broken and no medical care is
sought. Maltreatment by abuse is determined.
B.
Analysis: Once abuse is determined, if the resulting injury is on the list of serious injuries, then
it amounts to serious maltreatment. Bites are on the list of injuries, and thus this is serious
maltreatment.
Neglect, Serious Maltreatment
A.
Facts: A vulnerable adult ("VA") is left alone on a couch for a few minutes. The staff person
knows that staff need to stay with the VA when on the couch because the VA could fall. The
VA falls and fractures her/his thumb, which was set by a physician. Maltreatment by neglect is
determined.
B.
Analysis: Neglect is involved, and the question becomes whether the care of a physician was
reasonably required. The individual sustained a fracture which was treated by a physician, and
thus "care of a physician" was required and this is serious maltreatment. (This same analysis
would apply if a family child care provider left children unsupervised, one child fell on another
and a leg was broken, and maltreatment by neglect is determined.)
A.
Facts: A vulnerable adult has a history of sexual behaviors toward others and his/her
supervision plan addresses these behaviors. When the provider fails to supervise the
vulnerable adult, the vulnerable adult engages in sexual contact with another vulnerable adult
in the foster home. There is a finding of neglect by the provider.
B.
Analysis: Because the provider is responsible for neglect, and the neglect resulted in criminal
sexual conduct against a vulnerable adult, this is serious maltreatment. (This same analysis
would apply if a family child care provider or a foster parent left children unsupervised with a
resulting neglect finding and a child was sexually assaulted).
Sexual Abuse, Serious Maltreatment
A.
Facts: A child protection report indicates that an 11-year-old foster child was sexually
abused by a foster parent. After examination and interviews, maltreatment by sexual abuse
is determined.
B.
Analysis: Sexual abuse is always considered serious maltreatment.
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V.
VI.
VII.
Recurring Maltreatment (Not Serious Maltreatment)
A.
Facts: On Day 1, a toddler is missing for over an hour and found wandering around on a
busy street. Maltreatment by neglect is determined. On Day 2, the same child care provider
leaves an infant locked in the car, with windows rolled up, while shopping. Maltreatment by
neglect is determined.
B.
Analysis: In each instance, neglect was determined but there were no injuries and thus the
care of a physician was not required. Neither incident meets the definition of serious
maltreatment. Disqualification is appropriate, however, due to recurring maltreatment.
Care of a Physician, Serious Maltreatment
A.
Facts: A staff person gives a VA the incorrect amount of a medication, necessitating a visit
to the emergency room. Laboratory tests are conducted. Medication is administered to
counteract the effects of the overdose. Maltreatment by neglect is determined.
B.
Analysis: Because neglect is involved, the issue is whether or not the care of a physician
was reasonably required. The VA was taken to the hospital and laboratory tests were
conducted. The assessments or diagnostic testing that was done does not constitute care of
a physician. However, in this case, medication was administered as ordered by a physician,
and thus the injury or harm that resulted required the care of a physician. This is serious
maltreatment.
Not Care of a Physician, Not Serious Maltreatment
A.
Facts: A foster child requests bleach to clean her bedroom. This foster child has a history of
depression and prior to this incident indicated she wanted to commit suicide. The foster
parent gives the foster child the bleach and, a little while later, the foster child said she was
going to drink the bleach and would not give it back to the foster parent. The foster child
was left alone and drank the bleach. The foster child was admitted to the hospital for
observation. The physician found no physical symptoms from drinking the bleach.
Maltreatment by neglect was determined.
B.
Analysis: This involves neglect and the question is whether or not the care of a physician
was required. Although the foster child was admitted to the hospital, it was for observation
only. This does not constitute care of a physician. Further, the physician found no physical
symptoms. Because care of a physician was not required, this is not serious maltreatment.
Some of the above scenarios may involve rule violations even if they do not meet the definition of serious or
recurring maltreatment. The maltreatment finding itself warrants some type of licensing sanction.
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